Archive for November, 2011

Social media content either produced by a corporation or an individual – or posted/sent via a social media platform – can impact a multitude of legal concerns: regulatory, enforcement agency, product liability, copyright, trademark, intellectual property, trade secret, wage and labor, the list goes on.

Even still, as lawyers can be a bit (ahem) reluctant to follow new technologies, there are a number of myths and fallacies about social media that are prevalent today.

1. It is going away. We won’t have to worry about it.

Sort of like the Internet and e-mail, it’s a fad, right? Hard to find people who will say it seriously, but I’ve heard more than one lawyer wish it were true, and more than one act like it is.

This is not a legal strategy, this is wishful thinking. If you still believe this, then you have got some bigger issues to deal with. Like reality.

2. We can stop our client from using it and/or our client will have nothing to do with social media.

In the vast majority of companies, the marketing department will win this fight. Period. Because it is an existential battle for marketing departments. Those departments would cease to exist if prohibited from using social media.  I heard an anecdote about the General Counsel of a pharmaceutical company announcing that there would be a Facebook page “over my dead body” – approximately a year before the company’s first official Facebook page was launched.

Even in the most restrictive of circumstances, those companies which are highly regulated or litigated , the legal departments may be able to stem the tide temporarily, but just that, temporarily.

Already, most of these industries – Pharma, Energy, Banking – all have launched significant social media programs. So let’s look at an outlier of a company specifically prohibited from advertising their product. Here is a Facebook “interest” page on Camel Lights. As of the day of this post, there were almost 2,000 “Likes”. Notice there are no disclaimers or health warnings.

Why should there be. After all, it’s not an RJR sponsored page. They have no control over it, it is not a property they sponsor. But clearly, it’s an issue the legal department would have to,at a minimum, look at.



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According to the New York State Bar Association Issues E-Discovery Guidelines,

“Lawyers need not become computer experts; but they do need sufficient knowledge to represent clients competently in a world where “e- discovery” is fast becoming standard “discovery.”

These 14 guidelines place emphasis on the importance of evolving technology and the responsibility to preserve data. Although the guidelines are intended to provide New York practitioners with “practical, concise advice in managing electronic discovery,” all legal professionals can benefit greatly from thoughtfully reviewing and adjusting their practice accordingly.

“Whether documents are stored on Facebook, in an iPad, in email or in the ‘cloud,’ members of the legal profession must understand their legal responsibilities in preserving, collecting and producing the electronically stored information,” state bar President Vincent E. Doyle III said in a press release.

The legal responsibility to preserve electronic data has always been met with push back and confusion. What needs to be preserved? What triggers preservation? What methods of preservation are sufficient? Well, these 14 guidelines present a solid framework and manage to answer all of those burning questions most legal professionals have.

Via“Counselors Get Counsel on Ediscovery”

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I was recently interviewed by Brendan McKenna for this article on our NYC relationship that appeared in Law Technology News.

First off thanks to Brendan and LTN for speaking with us and the story.  It relates the story of how this project developed for us.

One idea that is so critical in social media eDiscovery, as well as plain ole eDiscovery and trial practice is the idea and power of cloud-based scalability and multi-tenant services.

Scalability through multi-tenant applications aren’t features in the Nextpoint platform, it’s one of the central pillars of the architecture.  It is THE thing that makes the technology different from legacy technology.  These are technologies that make Facebook, Twitter and Google Apps different from local install applications. These are accomplishments that are only possible through multi-tenancy.  Think about if everyone had to ‘install’ the latest version of Facebook.

Without these things, the amount of data that has to be managed must be CERTAIN.  Without a finite end-point to the volume of data to be dealt with, the problem of  designing, building and managing an on-premise solution becomes difficult if not impossible to solve.

It’s that simple.  If the amount of data is UNCERTAIN, then scalability is not a luxury it is a necessity.  It is the only way to do things on a scale that has never been done before.

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Two recent articles from Financial Planning.com speak particularly well to the buzzing topic of FINRA compliance.

Early Guidance

The first article,  Early Guidance on Staying Social Media-Compliant, offers up some preliminary guidelines for FINRA compliance. The article references a few steps for financial professionals as noted by social media expert Alexandra Basak Russell, at the Women Advisors Forum. Here are the basics:

1.  Create and maintain a clear social media policy and train your staff on that policy

2.  Don’t get into trouble by posting about, recommending or even talking about investment products

3.  FINRA makes a distinction between static and interactive content

4.  To remain in compliance, firms must capture a record of all tweets and posts, including those that are removed for being deemed inappropriate. All communication with the public must be retained.

See article for greater detail within guidelines.

Social Media Success

The second article, Social Media Success: Interpreting FINRA’s Guidelines,  links to a comprehensive list of key takeaways as analyzed by SunGard Data Systems, based on the two rounds of guidelines in place by FINRA, Notice 10-06 and Notice 11-39. The main takeaways are as follows:

1.  Correspondence between representatives, advisers or managers and customers does not need pre-approval. But, of course, store a copy of all correspondence.

2.  If any of the interactive content gets turned into standing or “static” content, establish a procedure for reviewing and signing off on that content.

3.  Messages to customers and interactions in different social media need to be monitored, regardless.

4.  Postings that are intended to be seen on web sites or fan pages should be reviewed ahead of time. Changes should be reviewed again.

5.  If you’re only going to store the postings or interactive communications by your representatives, managers or staff, you better clearly define what constitutes a business message and what does not.

6.  Conduct random audits on personal content – wherever your reps, staff or managers might put it — to see whether it crosses the bounds into business content.

7.  You can no longer just police content that gets created on firm-owned devices.

8.  Review any and all links to third-party websites, third-party data such as trending and statistical information, headlines or comments from websites or analysts.

See the slideshow of takeaways for greater detail.

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According to The International Data Corporation (IDC), worldwide revenues for social media archiving applications will increase from $1.15 billion in 2011 to $2.04 billion in 2015. (via MarketWatch)

We are excited (but not surprised) about this projected “aggressive growth” as Vivian Tero, Program Director for IDC’s Governance, Risk & Compliance (GRC) Infrastructure puts it.

Also of note in the findings, cloud-based and hosted services are rapidly gaining market share.

 “At the same time, on-premise vendors are investing to extend their ability to deliver their archiving applications through various cloud delivery models. Hosted or cloud-based message and social media archiving solutions will continue to close the gap over the forecast period.”

When Nextpoint built Trial Cloud (the trial preparation module of our now extensive technology platform) in 2005, it was clear to us that cloud architecture was the only future-proof and sustainable model to manage the ever expanding glut of digital data. Data stores our clients were dealing with at that time were the smallest they would ever be, and that Internet technology would only compound the amount and types of data. The Internet would be both the “problem” and “the savior” when it came to processing and managing data for discovery and trial.

Growing social networking would further complicate matters of collection and discovery and Nextpoint responded by releasing Cloud Preservation in 2010. Looks like we were slightly ahead of the curve again.

Nextpoint continues to innovate and release new functionality in Cloud Preservation every 2-3 weeks, most recently, Flickr.com integration.

Being a leader in the exciting tech development for this rapidly changing landscape is a thrill. That fact is not lost on us.

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The recent article published by Kashmir Hill from Forbes.com, “Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords,” discusses and links to a number of instances of opposing counsel seeking to, and in some cases, getting full account access to a social media property to find relevant data.

This doesn’t make sense.  Outside of the significant privacy implications, it’s also an unsustainable and technically flawed work flow.

At Nextpoint, a sustainable, repeatable approach to social media discovery is being developed and refined every day.  Using Facebook as the case study, here’s a snapshot of how our clients use it today. ( This workflow is applicable to every social network platform and our Cloud Preservation technology collects from a number of them including: Facebook, Twitter, YouTube, Flickr, LinkedIn and Tumblr. )

1. Notify & Disclose: Notify all relevant parties that content on Facebook profiles or fan pages should be preserved for purposes of social media discovery.  Request a legal hold. I am not a lawyer, but as I understand it this falls under Rule 26.

2. Identify: Identify those Facebook feeds, whether personal profiles or official corporate feeds, that will need to be preserved for purposes of the legal hold and relevance review.

3. Preserve: Using Cloud Preservation’s Facebook API integration, all of the content made available to Facebook property is indexed and archived separate from Facebook in a highly secure, private archive.

This preservation is a snapshot of all of the content posted by and available to a Facebook profile, as of the initial date of the preservation.  This will contain all of the information that may need to be produced, but will also include a lot of irrelevant data.  Potentially, in the case of a company with hundreds, thousands, or tens of thousands of interactions with Facebook users, this is an ocean of data — again most of it not relevant, but you don’t know until you know.

4. Collect: Now that all of the data available to a Facebook property is securely archived, indexed and compiled into a forensically sound archive, there is now a defensible legal hold in place.  No worries about spoliation by any user, whether intentional or not.

The next step is to develop a subset of potentially relevant data from this preservation.  This is done by using powerful search syntaxes to build Boolean, proximity and fuzzy keyword searches, again built into Cloud Preservation.

5. Initial review: Now that obviously irrelevant data has been removed, the subset of Facebook content to be produced is reviewed using Discovery Cloud.  Discovery Cloud receives the data directly from Cloud Preservation  (no need to download and then upload).  The transfer is seamless. Any relevant content is tagged for production. Any privileged content tagged for privilege. (Is it possible to have content that is attorney-client privileged on Facebook?  Of course, if it’s a private message.)

6. Final review: The Facebook content to be produced is then sent securely within Discovery Cloud to the opposing counsel to access.  Opposing counsel only has access to the Facebook data and metadata – attorney notes, issue codes and irrelevant data is not available. It’s digital discovery, just a new type of data.

7. Grant access: Producing counsel makes a final check of the content to be produced and gives counsel access to Discovery Cloud.  If local rules require, production may be made in a PDF format. However, it is far more costly, time consuming and introduces a much greater possibility of error resulting in the counsel building in extra time to manually review the PDF production. Opposing counsel can then search and save the content as needed.

8. Ongoing archiving: The Facebook archive continues to build with additional content generated or received since the original legal hold was placed.  Additional materials, if relevant, are then sent to Discovery Cloud.

9. Supplemental exchanges: Back to step 7, new relevant Facebook content is made available to opposing counsel.

Nextpoint builds technology to help lawyers manage digital information. Social media represents the latest type of digital information to be managed. With the right technology, processes and support in place, our clients have a fully integrated solution for social media today.

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